Mike German, American Civil Liberties Union: “Reducing Overclassification and Protecting the Public’s Right to Know”

The American Civil Liberties Union commends the Public Interest Declassification Board (PIDB) for recognizing the need to transform our broken national security classification system and for creating a public forum to solicit new and innovative ideas from the American people. The ACLU, a non-partisan organization dedicated to preserving the freedoms guaranteed by the Constitution and Bill of Rights, recognizes that while a limited amount of government secrecy is necessary in certain situations, this secrecy comes with significant costs to a free and open society. Excessive government secrecy undermines the core principles of democratic government; it cripples our constitutional system of checks and balances and kills public accountability, two essential elements for the proper functioning of a healthy democracy.

The white papers produced on the PIDB “Transforming Classification” blog offer many helpful suggestions to enhance, simplify and streamline declassification efforts, but we believe the enduring problem of excessive and unnecessary classification requires more drastic measures to protect the public’s right to know and restore the constitutional balance of powers in matters of national security and foreign relations. Despite reform measures included in the December 2009 Executive Order on classification (EO 13,526), the government made a record 76,795,945 classification decisions last year, which represents more than a 40 percent increase from 2009. Incremental reform efforts have failed because the incentive structure built into the existing classification system makes it too easy for government officials to classify information unnecessarily and keep it hidden for too long, without adequately considering the true costs or the real damage such excessive secrecy does to both national security and our democracy.

We recommend the following measures to tackle the persistent and growing problem of over-classification:

I. Reduce the Amount of Time Information Remains Classified

Reversing the current incentive structure could be accomplished most easily by drastically reducing the amount of time information may be classified before automatic declassification. Section 1.5(b) of Executive Order 13,526 authorizes classification periods of between 10 and 25 years. We recommend reducing this to a period of 3 to 10 years before automatic declassification occurs. The 1997 Moynihan Commission recommended that no information should be classified for more than ten years without recertification based on current threat assessments. Documents that must remain secret after this period could be reclassified pursuant to section 1.5(c) if necessary, but forcing a declassification review of information within an earlier time-frame would increase the likelihood of identifying improperly classified material earlier, and reduce the long-term costs of protecting unnecessary secrets. Forcing an earlier review of classification decisions would also identify more quickly the individual classifiers in need of re-training or reprimand. When officials making classification decisions realize their work will be reviewed by others while they are still employed at the agency in question, rather than long after they’ve retired, they will be more likely to use care in making classification decisions.

Finally, by putting the agency officials in the position of having to re-certify materials within a short time period before the classification automatically expires, they will have to devote more resources to the declassification review earlier in the life cycle of the information. This would force agencies to realize the expenses involved in classification at an earlier point, rather than over years in the future. The incentive would then be to reduce these costs by limiting the amount of information that is classified in the first place, and to keep to an absolute minimum the information that remains classified after review, as it would be again subject to review within a similarly shorter time period.

II. Require Original Classification Authority Review of Derivatively Classified Information

The Information Security Oversight Office reported that 99.7% of classification actions are derivative classifications made not by trained original classification authorities, but by other agency employees or contractors who may be untrained in and less familiar with classification policy. These derivatively classified materials should be reviewed by an original classification authority within a reasonable amount of time (no longer than five years), to detect and remedy improper classification more quickly. Again, by forcing agencies to face the costs of unnecessary classification earlier, they will be encouraged to provide adequate training and oversight in order to reduce these costs.

III. Restore Constitutional Checks and Balances in National Security Matters

EO 13,526 correctly proclaims that “[o]ur democratic principles require that the American people be informed of the activities of their Government.” When executive branch officials use classification to conceal crucial information from Members of Congress, the courts, and the public, they sabotage the checks and balances necessary to the proper functioning of our government and undermine the Constitution they are sworn to protect.

1. Reform the State Secrets Privilege

The most corrosive effect of excessive secrecy on our democratic principles occurs when our government is not held accountable for its actions. In its most sinister form, secrecy has been used not to protect national security, but to hide illegality or shield agencies and elected officials from liability or embarrassment. Under the Bush Administration, the state secrets privilege mutated from a common-law evidentiary rule that permitted the government to block discovery of information that would adversely affect national security, into an alternative form of immunity that is increasingly being used to shield the government from accountability for systemic violations of the Constitution. Unfortunately, the Obama administration has endorsed this expansive interpretation of the state secrets privilege and its 2009 guidelines offered only procedural reforms as an antidote to abuse.

The President should revisit these guidelines and invoke the privilege only when necessary to protect particular pieces of classified evidence, rather than to seek dismissal of lawsuits. The President should also support state secrets reform legislation that would require courts to conduct an independent review of evidence the executive claims is privileged.

2. Encourage Congressional Oversight

Frequently, excessive secrecy means that Members of Congress are not fully informed of important developments or key pieces of intelligence during critical debates. As a co-equal branch of government Congress shares the responsibility for overseeing and funding national security programs and the President should encourage robust congressional participation in national security matters. The Government Accountability Office is mandated to investigate all programs and activities of the U.S. government and report to Congress and the President recommendations regarding how these programs may be performed more efficiently. The President should intervene to prevent the intelligence agencies from obstructing GAO efforts to audit intelligence programs.

The President should also request additional funds and devote additional resources to expand existing declassification efforts. There are significant physical costs to safeguarding secrets, estimated at more than $10 billion per year, while a fraction of that amount is devoted to declassification. Additional resources expended on declassification today will reduce the unnecessary long term costs of securing information that does not need to be protected.